19 F.

3d 1431

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of

unpublished dispositions is disfavored except for establishing
res judicata, estoppel, or the law of the case and requires
service of copies of cited unpublished dispositions of the Fourth
Circuit.
UNITED STATES of America, Plaintiff-Appellee,
v.
Wayne Otto NEAL, Defendant-Appellant.
No. 93-5696.

United States Court of Appeals, Fourth Circuit.

Submitted: February 17, 1994.
Decided: March 10, 1994.

Appeal from the United States District Court for the Middle District of
North Carolina, at Greensboro. Frank W. Bullock, Jr., Chief District
Judge. (CR-93-68)
Richard A. Elmore, Susan Hayes, Pfaff, Elmore & HAYES, Greensboro,
North Carolina, for Appellant.
Benjamin H. White, Jr., United States Attorney, Sandra J. Hairston,
Assistant United States Attorney, Greensboro, North Carolina, for
Appellee.
M.D.N.C.
AFFIRMED.
Before RUSSELL, MURNAGHAN, and WILLIAMS, Circuit Judges.
OPINION
PER CURIAM:

Wayne Otto Neal entered a guilty plea to one count of armed bank robbery, 18

U.S.C. Secs. 2113(d), 2 (1988). He appeals his sentence of 112 months on the
grounds that the district court erred in making an adjustment for reckless
endangerment during flight, United States Sentencing Commission, Guidelines
Manual,Sec. 3C1.2, (Nov.1992), in giving an enhancement for a loss over
$10,000, U.S.S.G. Sec. 2B3.1(b)(6), and in giving an enhancement for use of a
firearm during the robbery, U.S.S.G. Sec. 2B3.1(b)(2). We affirm.

Wayne Neal agreed to drive the getaway car for his brother, Thomas Neal, and
Robert Murphy, while they robbed a bank. He was to have been paid $500 for
the service. A total of $16,927 was taken from the bank, of which all but $124
was recovered.

At the sentencing hearing, the district court heard testimony from a policeman
who heard about the robbery on his patrol car radio, saw the getaway car
driven by Wayne Neal (whom he recognized), and gave chase with his lights
flashing and his siren on. The policemen testified that during the chase Neal
drove through several stop signs and red lights, and failed to yield to oncoming
traffic where required during the lunch hour in a business district. Although
Neal was going only about forty-five miles per hour in a thirty-five mile per
hour zone, the district court found that his conduct constituted reckless
endangerment under U.S.S.G. Sec. 3C1.2.

"Reckless" is defined as the defendant's disregard of a risk created by his

conduct, when the defendant was aware of the risk, and his disregard of the risk
"constituted a gross deviation from the standard of care that a reasonable
person would exercise in such a situation." U.S.S.G. Sec. 2A1.4, comment.
(n.1). We find that Neal's conduct comes within this definition, because he
obviously disregarded the risk of a collision with another car or a pedestrian
which could have caused injuries. The district court correctly made the
adjustment.

Neal contended in the district court that no enhancement for loss was due under
U.S.S.G. Sec. 2B3.1(b)(6) because most of the money was recovered by the
bank. He renews this argument on appeal, but concedes that the guideline
seems to require an enhancement. "Loss" for sentencing purposes is the value
of the thing taken, even if it is recovered with undiminished value. U.S.S.G.
Sec. 2B1.1, comment. (n.2). An enhancement for a loss of more than $10,000
was thus properly given.

Under U.S.S.G. Sec. 2B3.1(b)(2)(C), a five-level enhancement applies if a

firearm was brandished, displayed, or possessed during the robbery. It also

applies to a co-defendant who counseled or aided and abetted the possession of

the firearm. U.S.S.G.Sec. 1B1.3(a)(1)(A). Neal maintained during sentencing
that there was no evidence that he knew the gun was present. The government
presented evidence from an agent of the Federal Bureau of Investigation that,
just before the robbery, Wayne Neal and Murphy told Thomas Neal where a
gun could be purchased. Wayne drove the three of them to a house where
Murphy knew a gun was available. A .22 caliber revolver was bought there for
use in the robbery. Thomas Neal had the gun in full sight in the back seat of the
car on the way to the bank, and carried it during the robbery. Neal did not
testify or present any evidence to contradict the agent's account. On this record,
we find that the district court did not clearly err in finding that Neal knew the
firearm was possessed during the robbery, and that he was properly held
accountable for it.
7

The judgment of the district court is therefore affirmed. We dispense with oral
argument because the facts and legal contentions are adequately presented in
the materials before the Court and argument would not aid the decisional
process.